On 10 September 2020, Dr Samantha Davey, Lecturer in Law at the University of Essex, presented her paper entitled ‘The Coronavirus Act 2020 and Guidance Governing Social Relationships and Communication: An Orwellian Dystopia or a Protective Bubble?’ at the digital conference ‘Are Emergency Measures in Response to COVID-19 a Threat to Democracy? Fact and Fiction,’ co-organised by the Institute of Advanced Legal Studies (IALS) and the Westminster Foundation for Democracy (WFD).
Her paper examined the distinction between legally enforceable status of the Coronavirus Act 2020 and the persuasive status of various Government guidance on the coronavirus on social relationships and communications. Her paper placed a particular focus on social distancing, social gatherings and the use of face masks.
Just to provide an overview, the Coronavirus Act 2020 was created via emergency powers and was fast-tracked into existence in just four days. As a consequence, this statute lacked the usual prolonged scrutiny which legislation receives from the Houses of Parliament. The urgency to create new law was to address the high numbers of people becoming seriously ill or dying due to contracting the coronavirus. The Conservative Government was under pressure to impose practical measures via law to reduce the spread of the virus, which had swept across the world, and to provide special protection for vulnerable members of society including the elderly and disabled.
Dr. Davey’s paper sought to address the legitimacy of ministerial coronavirus guidance which has been created through powers under the Coronavirus Act.
It placed a focus on social distancing, social gatherings and the use of face masks. In doing so, her paper explored the legitimacy of the coronavirus guidance and its application by public bodies, with reference to three of the Nolan principles on integrity, accountability and openness, which guide the conduct of public officials such as ministers.
The discussion considered how social and familial relationships are being increasingly regulated, including by criminal law, due to the guidance created by the Executive and applied by public bodies such as the police. A particular cause for concern is the extent to which members of the public and public bodies (such as police and councils) can fully appreciate the distinction between guidance, which is not usually legally enforceable, and legislation, which is legally enforceable.